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TEN WAYS TO IMPROVE YOUR PRACTICE
and Stay Out of TroubleBy Dawn M. Evans
PROFESSIONALISMÐICS
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The quality of communication with prospective, existing, and former clients is the principal ingredient to a mutually satisfying
attorney-client relationship.The client’s expectations of the lawyer and the lawyer’s expectations
of the client must be established, modified, and revisited as appropriate, and honored during the representation.
Concluding the representation appropriately provides closure,reinforces how all key issues have been resolved and whether
any matters remain to be handled, and affords a final opportunity to reinforce the caliber of the work done.
All lawyers,
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regardless of area of prac-tice, size of firm, or years of licensure, occa-sionally face an ethical dilemma that requiresan in-depth knowledge of their duties andobligations as lawyers. Michigan lawyers cancontact the State Bar of Michigan’s EthicsHelpline at (877) 558-4760 for free, informaldirection on applicable ethics rules and opin-ions. While not a substitute for legal repre-sentation nor appropriate if the issue is al-ready in litigation or in the attorney grievanceprocess, many practitioners have received in-valuable help in understanding such topics ashandling client funds, navigating disqualifi-cation issues when changing firms, and ap-propriately terminating a client relationship.
Many questions pertaining to troubledattorney-client relationships actually stemfrom poor communication rather than thequality of the legal service provided. Avoid-ing a premature termination of the attorney-client relationship starts with establishingground rules early on in the relationship.This article discusses some tips for promot-ing a successful attorney-client relationship.
Develop staff guidelinesfor telephone contactwith potential clients.
The importance of the tone and contentof the initial conversation cannot be over-emphasized. In those brief moments, thepotential client is evaluating whether to en-
trust you—a total stranger—with perhaps themost important matter of his or her lifetimefor a significant and as yet unknown amountof money.
Beyond the basic concepts of courtesy,professionalism, and clarity, your staff mem-bers should understand that their obligationwhen speaking with potential clients is toprovide general information only, such asoffice location and areas of practice, and,as appropriate, to schedule appointments.Your staff should not impart information thatcould be construed as legal advice or imply,in any way, that they have the authority tospeak on your behalf.
Every lawyer has heard about the would-beclient who ‘‘shops’’ lawyers by telephone andlater files a motion to disqualify when a law-yer who was not hired (and who failed tomaintain any record of the conversation) ishired by the other party. The motion typi-cally identifies the moving party as the ‘‘for-mer client,’’ averring that certain attorney-client privileged information was impartedthat prohibits the lawyer from represent-ing the ‘‘second’’ client. This is avoidable byappropriate screening, follow-up, and rec-ord retention.
Before scheduling an appointment, thestaff person should determine if the caller isan adverse party to an existing client and, ifso, gracefully terminate the call before anycase-specific information is conveyed.
Check for conflicts before the initial meeting.
Client information forms completed inyour waiting room should identify opposingparties and persons with differing interests.This information should be cross-checkedagainst the existing and former client basebefore the initial meeting. That way, if a con-flict is identified, you can handle it before anyconversation occurs in the privacy of your of-fice, where it will be construed as attorney-client privileged information.
Every lawyer should develop a system forhandling the casual inquiry—a system thathas a beginning, middle, and an end.
Follow up—whetheryou’re hired or not.
When it becomes clear that there will beno appointment or, after meeting, that youwill not be retained, send a letter confirmingthat (1) no attorney-client relationship wasestablished, (2) you were not retained, and(3) you will do no work for that person. Youshould maintain a record of this contact—and the follow-up letter confirming that youwere not hired—at least to the extent thatthe person’s name can be identified in subse-quent conflict checks.
Manage clientexpectations—establishthem early, reinforce
them often, and document them.You must establish ground rules in the
first client meeting. In addition to obtainingdetailed information about the subject mat-ter of the representation and both preferredand emergency contact information, yourinitial conversation should include:
• a straightforward conversation aboutfees and expenses (more on this later)
• a step-by-step description of the legalprocess that is involved in addressingthe client’s situation, including a realis-tic timetable for milestones and com-pletion of the matter
• a detailed listing of your expectations ofthe client (such as candor, timely re-sponses to requests for information, andrestraint from undertaking actions that
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CE might impact the case absent consulting
with you)• an introduction of the client to staff
members with whom he or she will haveregular contact, identifying who shouldbe contacted (other than you) for spe-cific matters, such as scheduling or can-celling appointments
• an understanding of the client’s expec-tations—either modifying them fromthe outset (if they are unreasonable orunattainable) or acknowledging andrecording them
Absent this initial conversation, you maybe unaware (until it’s too late) that the client’sexpectations were, from the outset, whollyunrealistic or unattainable. Clients who havenot been realistically apprised of the merits oftheir case will believe it’s your fault if their ex-pectations aren’t met—even if they nevershared their expectations with you. If you didnot understand and address the client’s expec-tations, there’s at least an element of truth tothe client’s professed dissatisfaction.
You should send a letter containing thesekey points shortly after the initial meeting.This will memorialize the discussion and en-sure that the client understands the projectedresults. Similar letters, outlining progress to-ward and, most importantly, changes in pro-jected results, should routinely follow.
Fee agreements,including rates, expenses,and payment terms,
should be agreed to in writing.Fees and expenses should be discussed
and agreed upon before engagement. A writ-ten fee agreement, while not mandated, isstrongly recommended. By discussing theterms of the agreement in the initial conver-sation, you will learn immediately whethermoney will be a concern. This is invaluableinformation to have early on, before makinga significant investment of time and energy.
The fee agreement should be written inplain English. If the client does not read orcomprehend English, either (1) provide atranslation or (2) have the client and thetranslator execute a document averring thatthe fee agreement was explained to the clientin his or her language.
At a minimum, the fee agreement shouldcontain:
• the amount of money that must be paidto initiate the representation
• a description of applicable hourly rates,identifying the persons or categories ofpersons pertaining to each rate
• a representative list of billable expense items• billing methodology and frequency• payment terms, including policies for
delinquent payment or nonpayment
Abide by the fee agreement.
Almost as important as establishing and se-curing the fee agreement is consistently abid-ing by its terms. If the agreement provides fora monthly bill, bill monthly. Clients who re-ceive nothing for six months and in the sev-enth month receive a cumulative bill will beshocked (and unhappy), both because that billwill necessarily be larger than the monthly
tion during the pendency of the matter),bear reviewing.
Deposit all client andthird-party funds intoappropriate IOLTA1 or
non-IOLTA accounts.During 2005, the Michigan Supreme
Court twice modified the rule pertaining totrust accounts, with the expressed intentionof (1) ensuring interest-rate parity betweenIOLTA accounts and other types of invest-ment accounts and (2) bringing the Michi-gan trust account rule in line with Brown vLegal Foundation of Washington.2
What is unchanged is that you must de-posit client funds into a trust or escrow ac-count separate from any funds that you ownor claim. As fees are earned and billed to theclient, you can transfer appropriate moniesto your operating account in accordancewith the fee agreement.
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A written fee agreement, while not mandated, is strongly recommended. By discussing the terms of the agreement in the initial conversation, you will
learn immediately whether money will be a concern.
statements would have been and because theywill have assumed (with some justification,based upon the language in the fee agreement)that no bills during the intervening monthsmeant nothing was owed for those months.
Avoid reworking the fee arrangementmidstream. Changing hourly rates, requir-ing security interests or collateral not previ-ously sought, or attempting to fundamen-tally alter the method of calculation (such asmoving from a contingent to an hourly fee)may foment unwanted consequences, evenif documented with an amended contract ora novation. Under certain circumstances, itmay be viewed as an adhesion contract if en-tered into on the eve of trial.
Both MRPC 1.5, which discusses the‘‘clearly excessive fee,’’ and MRPC 1.8, whichaddresses prohibited transactions (such ascertain testamentary gifts, certain financialassistance to clients, and acquiring literaryrights to the subject matter of the representa-
What has changed is the method of deter-mining whether the client’s or a third party’sfunds are deposited into an IOLTA accountor a separate interest-bearing account openedfor that purpose. The previous bright-line‘‘$50 interest threshold’’ is no longer in place,replaced by the concept that, if the poten-tial interest to be earned on the client’sfunds exceeds the costs that would be in-curred in maintaining the funds—takinginto consideration applicable interest rates,the anticipated length of the deposit, and anyother relevant factors—the funds must beplaced in an interest-bearing, non-IOLTAtrust account.
Keep the client informed, setand meet communicationexpectations, and secure
necessary consents.The most common client complaint is
that the lawyer failed to promptly return
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phone calls. For many lawyers, this is notbecause they don’t like to return calls, but be-cause they believe the client is calling too fre-quently, particularly if there is nothing newto report.
You can avoid this complaint by manag-ing client expectations. Establish ground rulesfor communicating, including directing rou-tine, nonlegal inquiries to staff equipped tohandle them, and using e-mail or mail whenphone calls are unnecessary or inconvenient.Clients should be given an anticipated re-sponse time to inquiries, and you or your ap-propriate staff member should strive to abideby the timeframe given. Clients should be ed-ucated about the amount of time involved inthe legal process. They must trust you to pro-vide information as it becomes available, butunderstand that frequently calling you willnot speed up the process. You have an ethicalobligation to provide sufficient informationto permit the client to make informed deci-sions and a specific obligation to secure clientconsent to accept or reject settlement offers ormediation evaluations. In a criminal case, youmust abide by the client’s decision with re-gard to whether to enter a plea, waive a jurytrial, or testify.
Critical in each of these situations is thequality and clarity of communication withthe client. You must be very clear on the prosand cons of each choice being weighed andsecure an unequivocal assent to the course tobe pursued. Finally, you must retain somedocumentation of the communication andagreement—even if it is simply your ownnotes within the file.
Remain current in yourpractice area and retainco-counsel/experts to
ensure the quality of representation.Competence begins with having the base
of legal knowledge necessary to apply the lawto a client’s unique situation and to seekachievement of the client’s goals. It entailsknowing what information to obtain, whatlegal remedies are available, and how to initi-ate, respond to, and navigate through thelegal proceedings. Frequently, you can achievecompetence in unfamiliar legal territorythrough research and self-study. In other in-stances, you must admit that other expertise
is necessary and secure that expertise to pro-vide competent service.
Legal competence in a specific matter re-quires thoroughness and adequate prepara-tion. You have an ongoing obligation to main-tain competence by engaging in continuingstudy and education.
Conclude the representationappropriately; completeand deliver pertinentdocuments (providing
closure and inviting return business) andmaintain records necessary to defendagainst future claims.
Nearly as important as how the attorney-client relationship begins is how it concludes.Provide the client with copies of any pertinentdocuments, accompanied by a closing letterthat describes what is provided, delineates anyfurther steps to be taken or issues remain-ing, and encloses, as appropriate, the finalbilling. Any original documentation (particu-larly, title instruments and wills) should be re-turned and receipt acknowledged.
In addition to expressing appreciation for a client’s business, careful lawyers will advisethe client of their record retention policy andthe date after which the file may be destroyed.
You should maintain a core file that con-tains, at a minimum, a copy of any sig-nificant document not otherwise accessiblethrough courthouse records until the expira-tion of any application statute of limitationsfor claims that might be brought by theclient or third parties regarding the subject ofthe representation. Trust account recordsshould be maintained for at least five years.
Do I have to returnthe contents of myfile to the client
upon termination of representation?This question is typically raised when the
attorney-client relationship ends before the
matter has been concluded. The reasons vary:sometimes the lawyer seeks to withdraw, dueto nonpayment of fees or conflicts with theclient; sometimes the client is dissatisfied,whether justifiably or not. MRPC 1.16, ad-dressing the attorney’s termination of repre-sentation, requires that the lawyer ‘‘take rea-sonable steps to protect the client’s interests,such as giving reasonable notice to the cli-ent, allowing time for employment of othercounsel, surrendering papers and propertyto which the client is entitled, and refund-ing any advance payment of fee that has notbeen earned.’’3
Although the most recent formal opin-ion by the State Bar Standing Committeeon Ethics discussing the concept of clientproperty notes that ‘‘the determination ofwhat papers the client is entitled to receiveand what information is the property of theclient are questions of law beyond the juris-diction of the Committee,’’ it nonethelessdraws a distinction between things identifi-ably belonging to the client—such as origi-nal deeds, photographs proffered as potentialevidence, stock certificates, and original con-tracts—and those that belong to the lawyer.The opinion notes that ‘‘[t]he rules are notdesigned to change what is essentially thelawyer’s work product into something be-longing to the client.’’ In concluding thata lawyer can charge the client for a copyof the file, the Committee points out that‘‘[t]here is no legal support in Michigan forthe proposition that the files are the propertyof the client.’’4
Items identifiably belonging to the cli-ent should be returned as a regular courseof business in concluding a client matter sothat you do not have to wrestle with theproblem of how to return them before de-stroying the file. Additionally, property ‘‘towhich the client is entitled’’ may includework already paid for, such as expert reportsor depositions.
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In addition to expressing appreciation for a client’s business, careful lawyers will advise the client of their record retention policy and the date after which the file may be destroyed.
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Work product, such as your handwrittennotes or interoffice legal memoranda, maynot comport with a narrow definition of cli-ent property; but whether you nonethelessprovide copies of such items when the repre-sentation ends abruptly should be consideredon a case-by-case basis. If, for example, with-drawal is accomplished on the eve of trialand the client’s ability to pursue legal reme-dies may be jeopardized absent certain mate-rials, you should gauge whether standing onthe definition of ‘‘client property’’ in with-holding materials is worth the potential riskof a malpractice or grievance claim.
Simply stated, the client’s legal right to secure the entire file in an ongoing matterdiffers from the obligations owed when theattorney-client relationship extends to con-clusion and information is being soughtabout a closed matter.
If this article has sparked questions regard-ing the Michigan Rules of Professional Con-duct, contact the Ethics Helpline at (877)558-4760. A similar helpline for judges seek-ing information about the Code of JudicialConduct and opinions pertaining to that codeis available at (877) 558-4761. ♦
Footnotes1. IOLTA stands for ‘‘Interest on Lawyers’ Trust Ac-
counts.’’ An explanatory brochure that providesguidelines to attorneys about how and when to use an IOLTA account can be found at http://www.msbf.org/iolta/IOLTAAttorneyBrochure102005.pdf.
2. 538 US 216, 123 S Ct 1406, 144 L Ed 2d 376 (2003).
3. MPRC 1.16(d).
4. See Opinion R-19, dated August 4, 2000, available athttp://www.michbar.org/opinions/ethics/numbered_opinions/r-019.htm.
Dawn M. Evans is direc-tor of professional stan-dards with the State Barof Michigan. She spent 18years in attorney disci-pline with the State Barof Texas, the last five yearsas chief disciplinary coun-sel. She is the secretary for
the National Organization of Bar Counsel and wasformerly a member of the Texas Young Lawyers As-sociation Board of Directors and president of theWalker County Bar Association.